NEW JERSEY LAWYER

DAILY BRIEFING      03/21/2005


News Briefs

JUDICIAL NOMINEES GO BEFORE JUDICIARY COMMITTEE
Three judicial nominees are being considered Monday by the state Senate’s Judiciary Committee. James L. Pfeiffer of Phillipsburg is up for a Superior Court appointment, Patricia M. Kerins of Trenton for an administrative law judgeship and Mark S. Sininsky of Lakewood as a workers compensation judge. The committee also is considering the reappointment of Judges Max A. Baker of Atlantic County, David W. Morgan of Gloucester County and Maryann K. Bielamowicz of Mercer County; Joseph L. Foster and James E. Isman for Tax Court; and John J. Tumulty III and Gerald J. Eak as workers compensation judges. 3-18-05

SUPREME COURT TOUGHENS APPROACH TO DISCIPLINE
The New Jersey Supreme Court has toughened its stance on disciplining errant lawyers. It has twice this year disbarred attorneys whose ethical violations, standing alone, would not normally lead to disbarment, and it has declined to soften sanctions by the use of indeterminate suspensions, the penalty that’s one step short of a lifetime ban. One potentially far-reaching result is that the court’s Disciplinary Review Board effectively is being given tougher new precedents to use when framing penalties for lawyers violating ethics rules. For a full story, see the March 21 New Jersey Lawyer. 3-18-05

ANTI-SUBROGATION STATUTE VIOLATES ERISA
New Jersey’s law barring subrogation in health insurance policies conflicts with the federal Employee Retirement Income Security Act (ERISA), ruled a divided 3rd U.S. Circuit Court of Appeals. The majority opinion decision paves the way for health insurers to seek reimbursement of medical expenses from policyholders who later win or settle a personal injury suit against a third party. Writing for the majority in Levine v. United Healthcare, Circuit Judge Richard L. Nygaard found the New Jersey statute fails to satisfy the U.S. Supreme Court’s recently announced test for deciding whether a state law qualifies for ERISA’s savings clause. “Although New Jersey’s statute may have been aimed at shifting the burden of tort expenses from the liability insurance industry to the health insurance industry, the statute explicitly regulates both insurance and non-insurance entities,” Nygaard wrote. “To avoid ERISA pre-emption, a state law must be ‘specifically directed’ toward the insurance industry. The New Jersey statute is not.” In dissent, Judge Leonard I. Garth disagreed that the state statute is subject to pre-emption by the federal law in this case. (A full text of Levine, Facts-on-Call Order No. 92369, can be ordered from NJL Online or by calling 800-670-3370.) 3-18-05

STAGE SET FOR INTERNET FREE-SPEECH COURTROOM BATTLE
The stage for what could be a novel First Amendment ruling has been set in U.S. District Court in Trenton. A group of animal rights activists have cited their free-speech rights as grounds for dismissing charges they used the internet to encourage vandalism against Huntingdon Life Sciences of Somerville, a research laboratory. The case, before U.S. District Judge Mary L. Cooper, involves a website operated by the group Stop Huntingdon Animal Cruelty USA, which for several years has called for action to stop the lab’s use of chemicals on animals. “The First Amendment applies to the internet,” argues defense attorney Andrew Erba of Cherry Hill. “Websites are tantamount to newspapers” and are “in every sense the community newspaper,” he said. Trial is scheduled for June. 3-18-05

UMDNJ SETTLES BILLLING FRAUD INVESTIGATION FOR $1.4 MILLION
The University of Medicine and Dentistry of New Jersey and the University Physician Associates of New Jersey, the university’s faculty practice group, have agreed to pay $1.4 million to settle claims they overcharged Medicare, according to the U.S. Attorney’s Office in Newark. The two organizations are said to have submitted claims for services provided to Medicare patients by their teaching faculty, even though those services reportedly were provided by students. Assistant U.S. Attorney Stuart A. Minkowitz said the medical organizations, which denied the allegations, cooperated with the government’s investigation. The settlement is part of the federal government’s crackdown on teaching hospitals’ billing practices nationwide. 3-18-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, MARCH 18, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, MARCH 18, 2005.

THE SUPREME COURT has announced that it will release an opinion in GRECZYN v. COLGATE-PALMOLIVE, A-2, on March 21, 2005. The issue on appeal in Greczyn addresses whether an architect can be added as a named defendant for negligent design beyond the 10-year statute of repose established by N.J.S.A. 2A:14-1.1 under the principles of fictitious party practice and relation back.



APPROVED FOR PUBLICATION
HUSBAND AND WIFE
OVERBAY v. OVERBAY
Appellate Division, A-1818-02T5, approved for publication March 18, 2005. (22 pages). Facts-on-Call Order No. 92370

The Family Part erred by rigidly applying Miller v. Miller when it decided to impute additional investment income from the supported spouse’s inheritance for the purpose of determining her need for alimony.

NOT APPROVED FOR PUBLICATION
WORKERS’ COMPENSATION
WINTER v. W.H. STREIT, INC.
Appellate Division, A-3182-03T3, March 18, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 17748

Summary judgment for the defendant employer in a workers’ compensation intentional-wrong action reversed and remanded; the employer’s shop foreman brought his own 10-inch table saw, which he had purchased used at a yard sale, to the workplace to cut PVC pipe; the foreman knew that the saw had a loose bearing, no instructions, and no safety guard, and he had cut a finger on the blade previously; the plaintiff employee’s hand was drawn into the blade, cutting off the end of one finger and splitting two others; the Appellate Division reversed the Law Division’s refusal to invoke the workers’ compensation intentional wrong-exception, although it acknowledged that it was “not entirely sure” that the New Jersey Supreme Court would agree with its interpretation of the principles of the “Millison/Laidlow trilogy.”

ATTORNEY’S FEES
KIMM v. VENUS BEAUTY SALON
Appellate Division, A-5223-02T1, March 18, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17747

Law Division order entering judgment for the plaintiff attorney in his action to recover attorney’s fees from the defendant clients affirmed; on the attorney’s argument on appeal that the Law Division had improperly denied part of the fees for which he had sued and on the defendants’ cross-appeal that the Law Division should not have awarded fees after the entry of a consent order in October 1997, the Law Division’s findings of fact were supported by the record, and there was no basis on which to disturb them; on the attorney’s argument on appeal that the Law Division had improperly denied his application for prejudgment interest, nothing in the record supported an award, which is a matter of discretion in a contract action; on the attorney’s argument on appeal that he was entitled to additional attorney’s fees for his prosecution of the action for fees, his claim under Rule 1:4-8 and N.J.S.A. 2A:15-59.1 failed because there was nothing to show that the defendants’ position was baseless or frivolous.

EMPLOYMENT LAW
HUTTER v. DORN
Appellate Division, A-1209-02T1, March 18, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17743

Orders requiring the plaintiff to pay attorney’s fees and costs to the attorneys for the defendants in the plaintiff’s action under the Conscientious Employee Protection Act affirmed; the plaintiff police officer claimed that the defendant public officials retaliated against him after he issued a parking ticket to the Commissioner of Public Safety, and the trial court granted summary judgment for the defendants and awarded fees and costs; the award of fees and costs was proper because the plaintiff’s claims were “without basis in law or fact” within the meaning of CEPA, and the award does not require evidence of the plaintiff’s bad faith; moreover, the defendants’ application for fees was not untimely.

INSURANCE
STABENE v. UNITED STATES FIRE INSURANCE CO.
Appellate Division, A-5342-03T1, March 18, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17744

Order declining to vacate an underinsured motorist arbitration award of $827,000 and granting the plaintiff judgment affirmed; the plaintiff was injured in a work-related automobile accident on September 29, 1995 and in a work-related slip-and-fall on July 9, 1996; the plaintiff made workers’ compensation claims on both accidents and consented to entry of an order that stated that his disability was caused solely by the second accident; after settling with the tortfeasor in the automobile accident, he sought UIM benefits under his employer’s policy; the employer’s insurer argued that collateral estoppel, res judicata, invited error, and judicial estoppel required that the plaintiff’s recovery be limited to the period immediately following the automobile accident to his slip-and-fall and precluded any recovery under its policy for the period after the slip-and-fall; the Appellate Division declined to apply judicial estoppel, and there was no basis to vacate to arbitration award.

INSURANCE
WATSON v. ALLSTATE INSURANCE CO.
Appellate Division, A-3573-03T5, March 18, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17745

Order awarding the plaintiff’s attorney $9,660 in attorney’s fees and costs in an action for personal injury protection benefits affirmed; while it did not make explicit written or oral findings on the attorney’s application for $19,368.42, the trial court did attach to the order a list of the services for which it awarded fees; although it would have been more appropriate for the trial court to give separate reasons in either a written or oral decision, the trial court “evaluated and aggregated” the hours that were advanced by counsel for the plaintiff, who was the prevailing party; although the Appellate Division might have arrived at a different allocation if the initial decision had been its decision to make, it was not the Appellate Division’s decision to make, and the fee award was not an abuse of the trial court’s discretion.

VERBAL THRESHOLD
BOOTHROYD v. TAI T. HO
Appellate Division, A-6147-03T1, March 18, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 17746

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the motion judge properly concluded that the plaintiff’s workers’ compensation settlement that was approved by the judge of compensation was not determinative as to whether the plaintiff had met the requirements of the verbal threshold; furthermore, the plaintiff did not satisfy the first prong of the verbal threshold where the only objective evidence of a permanent injury was a diffuse disc bulge and a mild bilateral neural foraminal encroachment at L5-S1 that was documented by an MRI, and he did not satisfy the second prong where his ability to participate in softball stemmed from injuries from an earlier accident, where he had allowed his gym membership to expire before the accident in this case had occurred, where he did not state how the household activities that were affected were a significant part of his life, and where his “occupational life” was not affected; also, the plaintiff failed to present a Polk analysis.


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